Filing and serving documents - High Court rule changes

POSTED BY Thomas Bielby
15 April 2020

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New Zealand’s courts have remained open during the COVID-19 lockdown but are operating at a limited capacity.The Chief Justice and other heads of bench have made several announcements about how the court system will continue to function during this time.

The High Court has also issued several practice notes to provide the profession with some guidance around the relaxation some of the usual procedural requirements.

More recently, the High Court Rules have been amended to provide additional clarity and certainty around requirements during this time.It is important that those currently involved in or contemplating civil proceedings in the High Court are aware of the recent changes to normal procedure.

Temporary changes to the High Court Rules

The High Court (COVID-19 Preparedness) Amendment Rules 2020 came into force on 9 April 2020. The new Rules temporarily amend several High Court Rules relating to the filing, service, and attestation of documents. The key changes are as follows:

Filing:

    • The Court will accept filing by methods other than by hand or by post.In particular, the new rules allow for electronic filing by sending documents to an email address provided by the Registrar (New Rules 5.1A and 5.1B). Additionally, Judges are now able to direct that documents be filed electronically or by post if filing of documents by hand would disrupt the Court’s business or endanger any person(New Rule 5.1A(6)).

    • Signatures appearing on copies of documents filed electronically can now be relied on in proceedings by deeming the original signed document to have been filed (New Rules 5.1A(3) and (4)).

    • Filing fees no longer have to be paid by cheque. At the Registrar’s discretion, filing fees can be paid by credit card, electronic bank transfer, or by undertaking (New Rule 5.1B).New Rule 5.1B(d) also allows Registrars a discretion to deem that a filing fee has been paid so that a document can be accepted for filing where required by the interests of justice and in the existence of an emergency.

Service:

    • In circumstances where allowing other means of service would disrupt the court’s business or endanger any person, Judges can now require that documents be served electronically (New Rule 6.1A).

Oaths and declarations:

    • High Court Rule 9.12 has been amended to revoke the requirement to have witnesses sign briefs after reading them into evidence. The wider requirement to have briefs signed under Rule 9.7(4)(a) has also been revoked.

High Court Rule 9.73 has been amended to allow Judges to authorise the use of unsworn or unaffirmed affidavits in proceedings in emergency circumstances where requiring the affidavit to be sworn/affirmed would cause unacceptable delay to the proceeding or endanger any person.

(Please note that the above is only a brief summary of the key changes. The High Court (COVID-19 Preparedness) Amendment Rules 2020 can be found in full here) .

Guidance around timetabling issues in current proceedings

Timetables in current proceedings have already been severely affected and further delays and disruption seem inevitable for the foreseeable future.The High Court issued a practice note on 2 April 2020 placing the onus on counsel and self-represented litigants to confer and make reasonable accommodation when dealing with timetable variations. The practice note also advises that the Court will only get involved in timetabling matters where there is disagreement between the parties, and that any party found to have been unreasonable in failing to agree to a timetable variation is to expect cost consequences.

Summary

The rule changes and guidance from the courts is intended to keep the courts operating as smoothly as possible and ensure that justice continues to be administered during the lockdown period. However, it is unclear how long these measures will remain in place or at what stage the new rules might be repealed. It is also possible that further changes and amendments to the rules could be made as more discrete procedural issues come to light.

This document was created on 15 April 2020 and reflects developments as at that date.


POSTED BY Thomas Bielby
15 April 2020

VIEWED 234 TIMES

PERMALINK